AES Sparrows Point LNG, LLC v. Wilson (Maryland)

Dec 22: In the U.S. Court of Appeals, Fourth Circuit, Case No. 09-1539. The case involves a petition pursuant to the Natural Gas Act, by AES Sparrows Point LNG, LLC and Mid-Atlantic Express Holdings, LLC (collectively AES) to review the State of Maryland Department of the Environment’s denial of a request for water quality certification pursuant to § 401(a)(1) of the Clean Water Act, with respect to a proposed large-scale liquefied natural gas marine import terminal and pipeline project.

The proposal by AES is to construct and operate a liquefied natural gas (LNG) marine import terminal at Sparrows Point (a heavily industrialized area adjacent to Baltimore Harbor) and an eighty-eight-mile pipeline connecting the terminal to three interstate natural gas pipelines in Eagle, Pennsylvania.

The Appeals Court said in conclusion, "we: (1) hold that Maryland waived any potential claim of sovereign immunity in connection with the present petition for review by expressly consenting to defending, in federal court, its decision to deny AES’s Request for § 401(a)(1) Water Quality Certification; (2) hold that AES has failed to establish any basis for us to disturb the Corps’ determination that Maryland had not waived its right to grant or deny AES’s § 401(a)(1) Certification Request; and (3) deny AES’s petition for review of Maryland’s denial of its§ 401(a)(1) Certification Request on the merits." One of the Judges issued a separate concurring opinion.

Access the complete opinion (click here).

Mirant Potomac River, LLC v. EPA

Aug 12: In the U.S. Court of Appeals, Fourth Circuit, Case No. 08-1277. The Appeals Court explained that Mirant Potomac River, LLC (Mirant) appealed the U.S. EPA approval of Virginia’s Clean Air Interstate Rule State Implementation Plan (CAIR SIP). The Court said Mirant’s alleged injury, however, "flows from Virginia’s Nonattainment Provisions, which are separate emissions standards adopted by Virginia’s Air Pollution Control Board (Virginia Board) under the authority of the Virginia legislature. Because Mirant’s injury cannot fairly be traced to EPA’s approval of Virginia’s CAIR SIP, we dismiss for lack of standing."

The Appeals Court also noted in a footnote, "Since we find no subject matter jurisdiction, we need not evaluate a recent decision by Virginia’s Court of Appeals that invalidated a portion of the Nonattainment Provisions. . . Mirant Potomac River, LLC v. Commonwealth of Virginia, State Air Pollution Control Board, 2009 WL 1748524 (Va. Ct. App. June 23, 2009) (unpublished)."

In summary the Appeals Court ruled, ". . .there is no connection -- much less one that is 'fairly traceable' -- between Mirant’s claimed injury and EPA’s approval of Virginia’s CAIR SIP because Virginia’s Nonattainment Provisions and its CAIR SIP are separate regulatory schemes. Virginia’s Nonattainment Provisions are state regulations. They are not part of, and do not directly interfere with, the CAIR SIP approved by EPA. Consequently, Mirant has failed to demonstrate a causal link between its alleged injury and EPA’s approval of Virginia’s CAIR SIP. Mirant has failed to carry its burden of establishing standing."

Access the complete opinion (click here).

Columbia Venture LLC v. SC Wildlife Federation

Apr 3: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 05-2398, 06-1072, 08-1033, & 08-1034. The Federal Emergency Management Agency (FEMA), the South Carolina Wildlife Federation, et al (Defendants) jointly appeal the district court’s order vacating the 2001 base flood elevation determinations adopted by FEMA for Richland County, South Carolina. The district court vacated these determinations because of FEMA’s failure to timely publish notice in the Federal Register as required by 42 U.S.C. § 4104(a). Because Columbia Venture did not establish that it was prejudiced by this failure to publish, the Appeals Court reversed the district court’s Order of Vacatur and remand the case for further proceedings.

The Appeals Court explains that The sole grounds for an appeal under § 4104(b) is a claim that the flood elevations are scientifically or technically incorrect. FEMA must "review and take fully into account" any submitted data that tends to "negate or contradict the information upon which [the] proposed determination is based." Once FEMA resolves the administrative appeal,
any appellant aggrieved by its final determination has 60 days to appeal to the federal district court where the community is located. In 2005, Columbia Venture first learned of FEMA’s defective publication. It filed a motion to vacate the final base flood elevation determinations for the Congaree River, arguing that FEMA’s failure to comply with § 4104(a) rendered those determinations null and void. The district court granted the motion in favor of Columbia Venture. Defendants timely appealed.

The Appeals Court said FEMA does not dispute that it failed to timely publish notice of its August 1999 proposed determinations in the Federal Register in violation of § 4104(a). However, a failure to timely publish does not per se result in nullification of the agency action. Instead, § 4104(g) incorporates chapter 7 of Title 5 of the Administrative Procedures Act, which provides that "due account shall be taken of the rule of prejudicial error." 5 U.S.C. § 706. Therefore, "the party who claims deficient notice bears the burden of proving that any such deficiency was prejudicial," and if that party fails to carry its burden, the agency’s decision must be upheld. Friends of Iwo Jima v. National Capital Planning Comm’n, 176 F.3d 768, 774 (4th Cir. 1999).

The Appeals Court finds that, "Despite Columbia Venture’s attempts to distinguish Friends of Iwo Jima, we find that it controls. Columbia Venture has not shown that it suffered prejudice as a result of FEMA’s defective publication.

Finally, the Appeals Court rules, "As in Friends of Iwo Jima, because its position 'was considered and simply did not prevail,' Columbia Venture was not prejudiced. . . Because FEMA’s failure to comply with § 4104(a) did not prejudice Columbia Venture, we reverse the district court’s Order of Vacatur and remand for further proceedings."

Access the complete opinion (click here).

Piedmont Environmental Council v. FERC

Feb 18: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 07-1651, 07-1864, 07-1865, and 07-1866. This important case involving dozens of states, NGOs, electric utilities and associations. Two state utilities commissions and two community interest organizations petition for review of several rulemaking decisions made by the Federal Energy Regulatory Commission (FERC or the Commission) in connection with FERC’s implementation of the new § 216 of the Federal Power Act (FPA) and the National Environmental Policy Act (NEPA).

Section 216 of the FPA, which was added in 2005, gives FERC jurisdiction in certain circumstances to issue permits for the construction or modification of electric transmission facilities in areas designated as national interest corridors by the Secretary of Energy. The majority opinion reversed in part, affirmed in part, vacated in part, dismissed in part without prejudice, and remanded the opinion. The wrote a separate opinion concurring in part and dissenting in part.

The Fourth Circuit majority in this case summarized its decision as follows: "First, we reverse FERC’s expansive interpretation of the language in FPA § 216(b)(1)(C)(i) that grants FERC permitting jurisdiction when a state commission has 'withheld approval [of a permit application] for more than 1 year.' The phrase does not include, as FERC held, the denial of an application. Second, we affirm FERC’s determination that it was not required to prepare an environmental assessment or an environmental impact statement in connection with its issuance of procedural regulations dealing with the content of permit applications under § 216 of the FPA. Third, we conclude that FERC violated Council on Environmental Quality (CEQ) regulations when it failed to consult with the CEQ before amending its (FERC’s) NEPA implementing regulations to cover § 216 permit applications. We therefore vacate the amendments to the NEPA regulations and remand for FERC to engage in the required consultation with the CEQ. And fourth, we dismiss without prejudice, because it is not ripe, the part of one petition for review that seeks to challenge the content of the amendments (which we are vacating) to FERC’s NEPA-implementing regulations."

The minority dissent in part said, "because I believe that FERC correctly interpreted 'withheld approval [of a permit application] for more than 1 year' in 16 U.S.C.A. § 824p(b)(1)(C) (West Supp. 2008) to include the failure or refusal to grant a permit application for more than one year in cases in which the permit application was denied, I respectfully dissent from the contrary holding."

According to a report in the Mid-Hudson News, U.S. Senator Charles Schumer (D-NY) said the decision was a victory and indicated, “This decision puts the kibosh on NYRI’s effort to do an end-around local law and correctly determines that New York State should have the preeminent role in siting projects like NYRI. NYRI’s proposed path remains unduly intrusive and would have damaging impacts on parks, vista and communities from Utica to Chenango to the Catskills to Orange County.”

Christopher Miller, President of the Piedmont Environmental Council (PEC) said, "The decision directly upholds a State's right to reject a transmission line project without fear of the federal government stepping in to overrule that State's determination. In plain language, the utilities do not get a second chance if the State rejects a line based upon the merits. The court also ruled that FERC must consult with the Council on Environmental Quality to ensure compliance with the National Environmental Policy Act."
PEC indicated the Court's decision "overturns FERC's hard-charging, environment-be-damned approach to fast-tracking transmission line siting throughout the northeast and southwest corridors. The Court's decision is a blow against heavy-handed federal preemption and the ruling restores a semblance of federal-state balance in the overall transmission line-siting process."

PEC indicated that the FERC lawsuit was the first of two filed by PEC against the previous Administration's attempt "to fast-track transmission line siting through much of the U.S." The second, which seeks to overturn the Department of Energy's designation of multi-state corridors for transmission line siting [See WIMS 3/7/08], is pending before the Ninth Circuit Court of Appeals in San Francisco.

Access the complete opinion and partial dissent (click here). Access the Mid-Hudson News (click here). Access a release from PEC (click here).

Ohio Valley Environmental Coalition v. Elk Run Coal Co.

Feb 13: In the U.S. Court of Appeals, Fourth Circuit, Case Nos. 07-1355, 07-1479, 07-1480, 07-1964, 07-2112. This is a high profile case on the controversial issue of mountaintop mining, involving dozens of parties Plaintiffs-Appellees Ohio Valley Environmental Coalition, the Coal River Mountain Watch, and the West Virginia Highlands Conservancy (hereinafter referred to collectively as OVEC) challenge the U.S. Army Corps of Engineers (Corps) issuance of four permits allowing the filling of West Virginia stream waters in conjunction with area surface coal mining operations.

Granting judgment for OVEC, the district court rescinded the permits as violations of the Clean Water Act (CWA), the National Environmental Policy Act (NEPA), and the Administrative Procedure Act (APA). The court also enjoined all activity under those permits and remanded to the Corps for further proceedings consistent with its order. Separately, in an order dated June 13, 2007, the district court provided declaratory relief to OVEC, holding that the stream segments linking the permitted fills to downstream sediment treatment ponds were "waters of the United States" and that the Corps lacked authority under the CWA to permit discharge from the fills into the stream segments.

The Corps appealed the two orders and in a split decision, the Fourth Circuit reversed and vacated the district court’s opinion and order of March 23, 2007, and vacated the district court’s injunction. Additionally, the Fourth Circuit reversed the district court’s June 13, 2007, grant of declaratory relief and remanded the case for further proceedings consistent with its opinion.

The Appeals Court provides a straightforward explanation of the controversial practice of mountain top removal coal mining saying,"The mountaintop removal method of surface coal mining, pioneered in West Virginia, involves the blasting of the soil and rock atop a mountain to expose coal deposits below. While mining operations are ongoing, the overburden is hauled or pushed into adjacent valleys. This excavated overburden is known as "spoil." Once the coal has been extracted, efforts are made to re-contour the mountaintop by replacing the removed overburden, but stability concerns limit the amount of spoil that can be returned to the area. In its natural state, the spoil material is heavily compacted; once excavated, however, the loosening of the rock and soil and incorporation of air causes significant swelling. As a result, large quantities of the blasted material cannot be replaced, and this excess spoil (overburden) remains in the valley, creating a 'valley fill' that buries intermittent and perennial streams in the process.

"Water that collects in the fill must be moved out to ensure the fill’s continued stability. Thus, an underdrain system is constructed by placing large boulders up to and above the ordinary high-water mark of the stream. The collected water is then channeled into a treatment pond, where sediment from the runoff is allowed to settle. Sediment ponds usually are constructed in existing streambeds, using earth and rock to create an embankment. After sediments have settled out of the fill runoff, the treated water is discharged from the sediment pond back into existing streams. When practicable, a sediment pond will be constructed in the streambed immediately adjacent to the end (or "toe") of the fill. But, because West Virginia’s steep, mountainous topography often prevents this kind of positioning, a short stream segment is frequently used to move runoff from the fill downstream to the sediment pond. Once a valley fill is stabilized, the embankments of the sediment pond are removed, and the ponds and the stream segments are restored to their pre-project condition."

On appeal, the Corps contends that it is entitled to deference on its determination about the scope of its NEPA analysis and that its findings on individual and cumulative impacts and mitigation were not arbitrary or capricious. The agency further argues that its interpretation of its CWA regulations -- treating stream segments and sediment ponds as part of a unitary waste treatment system and thus excepting them from separate CWA § 402 permitting -- was entitled to deference. Intervenors have raised these same challenges to the district court’s ruling, but also argued that OVEC’s stream segment claim was barred in the first place under principles of res judicata [a matter already decided by the court].

The majority Appeals Court indicates that, "A complex statutory framework undergirds the regulation of valley fills and associated sediment ponds, and it is this framework that provides the foundation for our opinion." The Appeals Court says it appreciates "the statutory tightrope that the Corps walks in its permitting decisions" and rules, "The Corps, in permitting sediment ponds and accompanying stream segments under its § 404 authority, is attempting to harmonize the two statutes’ [Clean Water Act & Surface Mining Control and Reclamation Act] goals: ensuring that mining operations can proceed while maintaining the highest level of water quality possible outside of the mining area."

On the issue of "in-stream sediment ponds," the Appeals Court ruled, "Sediment ponds represent the 'best technology currently available' for the treatment of sedimentary runoff from surface mining valley fills. In fact, the regulations of the Department of the Interior’s Office of Surface Mining specifically contemplate the use of in-stream sediment ponds. 30 C.F.R. § 816.46(c) (2008). While ideally these ponds would be located immediately adjacent to the fills, the steep Appalachian terrain often does not allow this result. The topographical realities of the area make stream segments a necessary component of the construction of a waste treatment system for valley fill runoff. (See, e.g., J.A. 653.) This system, in turn, is necessary to ensure that water released from the mining area into existing streams meets CWA § 402 standards. The Appeals Court ruled "the Corps’ interpretation of its authority was reasonable in light of the CWA" and the Agency is "entitled to deference."

The dissenting minority opinion, which concurred in the parts of the majority opinion upholding the scope (or physical boundary) of the Corps’ NEPA analysis and the Corps’ interpretation of its regulatory definition of "waters of the United States,"the dissenting justice said, "In upholding the Corps’ interpretation of its obligations under § 230.11(e), the majority declines to give effect to the unambiguous requirements of the regulations. . . By failing to require the Corps to undertake a meaningful assessment of the functions of the aquatic resources being destroyed and by allowing the Corps to proceed instead with a one-to-one mitigation that takes no account of lost stream function, this court risks significant harm to the affected watersheds and water resources. . ."

Earthjustice, the public interest law firm representing several of the environmental organizations in the case issued a release saying, "The ruling will permit mining companies to conduct devastating mountaintop removal coal mining operations without acting to minimize stream destruction or conducting adequate environmental reviews. As a result, Appalachia could now be facing up to 90 new mountaintop removal coal mining operations, which would destroy huge swaths of the Appalachian Mountains." Steve Roady, Earthjustice attorney said, "We believe the decision is wrong on the law and the science. This fight is not over until mountaintop removal mining is over. We will continue to litigate, and in addition, the new administration must take immediate steps to curb the terrible practice of mountaintop removal mining and undo the mistakes of the past."

Access the complete opinion and dissent (click here). Access a release from Earthjustice and link to additional information (click here). Access links to various media reports on the ruling (click here).

South Carolina Wildlife Federation v. Limehouse

Dec 5: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1431. The South Carolina Wildlife Federation and co-plaintiffs (collectively SCWF) brought suit against Federal and state agencies and agency directors, alleging violations of the National Environmental Policy Act (NEPA), arising from the proposed construction of the Briggs-DeLaine-Pearson Connector (the Connector) in South Carolina.

The Appeals Court notes that relevant to the appeal, the Director of the South Carolina Department of Transportation (the Director), who was sued in his official capacity, moved to dismiss the case on the ground that the claims against him were barred by sovereign immunity under the Eleventh Amendment. The district court denied the Director’s motion, and he filed this interlocutory appeal. The Appeals Court affirmed the district court decision.

In its analysis, the Appeals Court said, "We conclude SCWF alleged facts sufficient to survive a motion to dismiss for lack of standing. SCWF asserted that construction of the Connector would harm its members’ ability to use and enjoy the relevant area for a variety of educational, scientific, recreational, and aesthetic purposes, and that one or more of its members currently use the land for such purposes." The Appeals Court also said that SCWF has shown that enjoining the Director from proceeding with the construction of the Connector, and requiring the reexamination of the proposal in accordance with NEPA, would redress its procedural and substantive concerns."

The Appeals Court cited the now famous, historic global warming Supreme Court case Massachusetts v. EPA, 127 S.Ct. 1438, 1453 (2007) [See WIMS 4/2/07] saying, "the redressability of an injury to a procedural right turns on the potential impact of the court’s action on the injury-causing party. Massachusetts v. EPA, 127 S.Ct. 1438, 1453 (2007) (requiring that a litigant seeking to vindicate a procedural right show 'some possibility that the requested relief will prompt the injury-causing party to reconsider' the decision). The Appeals Court concluded, "The district court properly found that SCWF stated a cause of action for prospective relief under NEPA and that the Director was party to the suit. Accordingly, we affirm the order of the district court."

Access the complete opinion (click here).

U.S. v. MV Sanctuary

Aug 25: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-2123. According to the Appeals Court, the main issue in the appeal is whether U.S. EPA may obtain an administrative warrant to carry out its authority under the Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq., to inspect places containing regulated chemical substances. The Appeals Court ruled that EPA has such authority, and affirmed the district court’s issuance of a warrant authorizing the Agency to inspect the M/V Sanctuary for polychlorinated biphenyls (PCBs). The Appeals Court also affirmed the district court’s preliminary injunction order preventing the Sanctuary’s owner, Potomac Navigation, Inc., from moving a ship from the pier in Baltimore where it was docked.

The Appeals Court cites the relevant sections of TSCA and indicates TSCA provides EPA with inspection authority. Specifically, "[f]or purposes of administering [TSCA]," EPA "may inspect any establishment, facility, or other premises in which" substances regulated by the Act "are manufactured, processed, stored, or held before or after their distribution in commerce." 15 U.S.C. § 2610(a). In addition, this inspection authority reaches "any conveyance being used to transport" a regulated substance "in connection with distribution in commerce." Id. EPA’s inspection powers "extend to all things within the premises or conveyance inspected" that "bear[ ] on whether the requirements of [TSCA]" have been met with respect to regulated substances "within such premises or conveyance."

The Sanctuary, built in 1944, was once a U.S. Navy hospital ship. The ship was stricken from the Naval Vessel Reports in 1989, and the government sold the ship later that year to Project Life, Inc. (formerly Life International) for $10, with the stipulation that the ship would be used to provide humanitarian services. Project Life docked the Sanctuary at a Maryland Port Authority (MPA) pier in Baltimore, with the announced purpose of converting the ship into a facility for women suffering from addiction. The conversion was never accomplished, and Project Life failed to pay MPA dockage and related charges that became due. Later, sampling data showed that PCBs were present in paint coatings on the Sanctuary. Moreover, as EPA’s research revealed, it was likely that PCBs were in, or exposed on the surfaces of, other components, equipment, and materials on the ship. It was also likely that the PCBs would be in, or on the surfaces of, items that were not being maintained "in a totally enclosed manner."

In early November 2007, pursuant to its authority under TSCA, EPA requested permission from Potomac to inspect the Sanctuary for materials containing PCBs. Potomac denied EPA’s request. Shortly thereafter, EPA (1) applied to the district court for an administrative warrant authorizing the inspection, and (2) moved for a preliminary injunction to prohibit Potomac from moving the Sanctuary from the Baltimore pier until EPA could complete the inspection and determine whether enforcement action was necessary. The district court issued the warrant for the inspection of the Sanctuary and granted the preliminary injunction.

Potomac appeals, contending that the district court erred in (1) concluding that EPA has warrant authority under TSCA, (2) finding probable cause to support issuance of the administrative warrant, (3) concluding that the Sanctuary was a proper location for inspection under TSCA, (4) denying Potomac’s request for a Franks hearing, and (5) granting the preliminary injunction that enjoined the towage of the Sanctuary from Baltimore.

The Appeals Court concluded, "Given the serious health and environmental consequences associated with PCBs, the district court did not clearly err in finding that the balance of harms tipped sharply in favor of EPA (and the public interest). In short, the district court did not abuse its discretion in granting a preliminary injunction (of limited duration) that prevented the Sanctuary from being moved from the United States while EPA executed its inspection warrant and considered what, if any, regulatory or enforcement action was warranted."

Access the complete opinion (click here).

AES Sparrows Point v. Smith

May 19: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1615. AES Sparrows Point LNG, LLC and Mid-Atlantic Express, LLC (together, AES) brought the suit against Baltimore County, Maryland, its executive, and its zoning commissioner (together, the County) seeking a declaration that County Bill 9-07, which prohibits the siting of any liquefied natural gas (LNG) terminal in the County’s Chesapeake Bay Critical Area, is preempted by the Natural Gas Act (NGA). The district court granted summary judgment to the County, concluding that Bill 9-07 is saved from preemption because it "is within the delegated authority of the State of Maryland and the County under the Coastal Zone Management Act" (CZMA) and "is enforceable as part of the State of Maryland’s Coastal Management Program." J.A. 271, 284. AES appealed.

The Appeals Court overturned the district court ruling and said, "We hold that Bill 9-07 is not part of Maryland’s federally approved Coastal Zone Management Plan (CMP), and therefore is not saved from preemption as an exercise of Maryland’s rights under the CZMA. Accordingly, we reverse the judgment of the district court and remand for further proceedings."

The Appeals Court said "our inquiry must focus first on whether Bill 9-07 has been incorporated into Maryland’s CMP. The CZMA specifies the manner by which a state may amend its approved CMP. . . 'Amendment' for purposes of the CZMA is defined in 15 C.F.R. § 923.80(d) . . . We have no difficulty concluding that Bill 9-07 is an 'amendment' of Maryland’s CMP because it imposes a categorical ban on LNG terminals in the Chesapeake Bay Critical Area that the CMP did not previously contain. . .

"The County does not dispute that it has never presented Bill 9-07 to NOAA for approval as required by the CZMA. The CZMA makes clear, however, that the mere adoption of Bill 9-07 into the County’s CAPP by Maryland’s Critical Area Commission is not sufficient to make Bill 9-07 part of Maryland’s CMP. . . Until NOAA approves Bill 9-07 or fails to take action after being presented with it, it is not part of Maryland’s CMP and cannot be saved from preemption by the NGA’s Savings Clause. Therefore, Bill 9-07 is preempted by the NGA’s grant of exclusive authority to FERC 'to approve or deny an application for the siting, construction, expansion, or operation of an LNG terminal,' 15 U.S.C. § 717b(e)(1), and may not be enforced by the County to prevent the construction of an LNG terminal at Sparrows Point."

Access the complete opinion (click here).

Piney Run Preservation v. County Commissioners (Carroll Co. MD)

Apr 23: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-1348. As explained by the Appeals Court, Piney Run is a small stream with its headwaters near the border of
Carroll and Baltimore counties in Maryland. For the second time, the Piney Run Preservation Association (the Association) has filed a citizen suit under the Clean Water Act (CWA) alleging that the County Commissioners of Carroll County are violating the CWA by discharging treated wastewater from the Hampstead Wastewater Treatment Plant into Piney Run.

The Association specifically contends that the temperature of the discharged effluent at times exceeds the thermal limitation set forth in the County’s National Pollutant Discharge Elimination System (NPDES) permit. On the County’s motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, the district court found that the Maryland Department of the Environment (MDE) was "diligently prosecuting" a CWA enforcement action against the County for violating the NPDES permit. Consequently, the court held that the Association was barred by 33 U.S.C. § 1365(b)(1)(B) from maintaining this suit. The Association appealed the order of dismissal, arguing that the district court erred in its "diligent prosecution" determination.

The Appeals Court affirmed the decision of the district court saying, ". . .a CWA enforcement action will be considered diligent where it is capable of requiring compliance with the Act and is in good faith calculated to do so. Based on the record before us, we hold that the Association has failed to meet its high burden of establishing that the MDE enforcement action does not satisfy this standard.

Access the complete opinion (click here).

State of North Carolina v. Tennessee Valley Authority

Jan 31: In the U.S. Court of Appeals, Fourth Circuit, Case No. 06-2131. As explained by the Fourth Circuit, in 1933, Congress created the Tennessee Valley Authority (TVA) "in the interest of the national defense[,] for agricultural and industrial development, . . . to improve navigation in the Tennessee River[,] and to control the destructive flood waters in the Tennessee River and Mississippi River Basins." As part of its mission, the TVA operates coal-fired power plants in Tennessee, Alabama, and Kentucky.

The State of North Carolina brought a "common-law nuisance action" against the TVA, contending that these plants emit various pollutants which travel through the atmosphere into North Carolina, adversely impacting human health and environmental
quality. North Carolina seeks an injunction prohibiting the TVA from operating its plants in a harmful manner and requiring it to abate the alleged nuisance.

The TVA moved to dismiss North Carolina’s suit, arguing that it is barred by (1) the "discretionary function doctrine," (2) the Supremacy Clause, and (3) the holding of Ferris v. Wilbur, 27 F.2d 262 (4th Cir. 1928). The district court rejected each of these arguments and denied the motion to dismiss. The district court then certified its decision for immediate appeal pursuant to 28 U.S.C. § 1292(b), and the Appeals Court accepted the appeal. The Appeals Court said, "The TVA now reasserts the same arguments it raised in the district court" and affirmed the decision of the district court. The case involved 20 intervening states supporting North Carolina. Two judges affirmed the opinion and one judge wrote an opinion concurring in part and dissenting in part.

In the case, the State of North Carolina sues TVA under the North Carolina common law of nuisance to enjoin the way that the TVA operates its coal-fired power plants in other States, namely Tennessee, Alabama, and Kentucky. North Carolina alleges that the "lawful emissions" from the TVA’s power plants in other States travel downwind and reach North Carolina airspace, where they damage human health and the environment in North Carolina. "Even though such emissions are regulated by and in compliance with the federal Clean Air Act and State law at the location of the plants," North Carolina contends that the emissions, whether permitted under applicable statutory laws, nonetheless create a public nuisance under North Carolina common law.

In his concurring/dissenting opinion, Judge Niemeyer explains, "The threshold question presented to us is whether the TVA, a federal agency, is immune from such a suit. Arguing that it is not, North Carolina points to waivers of immunity contained in the TVA Act, 16 U.S.C. § 831c. . . and in the Clean Air Act, 42 U.S.C. § 7418(a). . . The majority concludes that North Carolina may proceed under either waiver, as either is sufficiently broad to authorize North Carolina’s suit against the TVA. While I agree that the language of both statutes is sufficiently broad to authorize the district court to consider the North Carolina suit on its merits, I conclude that 16 U.S.C. § 831c must be read in light of the Constitution’s separation of powers doctrine, which precludes a suit challenging a governmental agency’s exercise of its discretionary functions. . ."

North Carolina's Attorney General Roy Cooper issued a brief statement saying, "Clean air is critical to our health and our economy. This ruling clears the way for us to make TVA clean up its pollution that’s dirtying our air and making North Carolinians sick.” He said North Carolina can now move forward with its suit seeking to get TVA to clean up air pollution from its power plants. Cooper filed suit against the TVA in January of 2006 seeking to stop "dirty air from TVA coal-fired power plants that harms North Carolina’s health, environment and economy." North Carolina’s case against TVA pollution is currently pending trial in federal district court in Asheville before United States District Judge Lacy H. Thornburg.

Access the complete majority opinion and the concurring/dissenting opinion (click here). Access the statement from AG Cooper (click here).

Ohio River Valley v. Green Valley Coal Co.

Dec 19: In the U.S. Court of Appeals, Fourth Circuit, Case No. 06-1475. Green Valley Coal Company (Green Valley) appealed the award of attorney fees in a citizen suit brought under the Surface Mining Control and Reclamation Act (SMCRA or the Act). Initially, three environmental organizations, Ohio River Valley Environmental Coalition, Inc., Hominy Creek Preservation Association, Inc., and Citizens Coal Council (collectively, OVEC), sued the Director of the West Virginia Division of Environmental Protection (the state agency) to mandate changes in the way the agency enforces its regulatory program under SMCRA.

In its complaint against the state agency, OVEC alleged that certain mining permit applications filed by Green Valley were deficient, and Green Valley intervened to defend the validity of its applications. The district court issued a preliminary injunction enjoining the State agency from approving one of Green Valley’s applications, though the injunction was later dissolved as moot after Green Valley withdrew the application. Later, OVEC filed supplemental claims against Green Valley in this litigation and a citizen complaint in the administrative arena, alleging SMCRA violations at one of Green Valley’s mining sites. Partly as a result of OVEC’s efforts, Green Valley took remedial actions at the site, which led OVEC to dismiss its claims voluntarily. OVEC ultimately moved for an award of attorney fees under SMCRA’s fee-shifting provision. The district court made a fee award that included prejudgment interest.

The Appeals Court affirmed the fee award with respect to the preliminary injunction phase (phase one) of the litigation. However, it vacated the fee award with respect to the supplemental claims phase (phase two) because that award included fees for OVEC’s efforts in the administrative arena, and fees for these efforts are not recoverable under the act. The Appeals Court said, "On remand the district court may reconsider, in light of the applicable standard, whether a fee award is appropriate for OVEC’s efforts in phase two of the litigation. We also affirm the award of prejudgment interest but vacate and remand to allow the district court to correct an apparent miscalculation."

Access the complete opinion (click here).